Citation Nr: 0407341
Decision Date: 03/22/04 Archive Date: 04/01/04
DOCKET NO. 01-03 691 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a cervical spine
disorder claimed as being proximately due to or the result of
service-connected disability from a low back disorder.
2. Entitlement to service connection for sexual dysfunction
claimed as being proximately due to or the result of service-
connected disability from a low back disorder.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
anxiety disorder claimed as being proximately due to or the
result of service-connected disability from a low back
disorder.
4. Entitlement to a total disability rating for
compensations purposes based on individual unemployability
due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Counsel
INTRODUCTION
The veteran had active duty service from April to June 1976.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a July 2000 rating decision in which
the Department of Veteran's Affairs (VA) regional office (RO)
in San Juan, Puerto Rico, denied an increased rating for the
veteran's service-connected back disorder and denied
entitlement to TDIU. In June 2001, before the RO sent the
appeal to the Board, the veteran withdrew his appeal for an
increased rating for his service-connected back disability.
The veteran has also appealed a February 2002 rating decision
in which the RO denied service connection for a cervical
spine disorder and disorder manifested by sexual dysfunction
claimed by the veteran as being proximately due to or the
result of his service-connected back disability, and did not
reopen a claim for service connection for anxiety.
In a September 1999 decision that the veteran did not appeal,
the Board determined that new and material evidence had not
been received to reopen the veteran's claim for service
connection for an acquired psychiatric disability. The Board
found that evidence submitted since a September 1988 Board
denial of service connection for an acquired psychiatric
disorder was cumulative of evidence already considered and
did not tend to show that the veteran had an acquired
neuropsychiatric disorder that was incurred in service, or
that it was causally related to an incident in service or
related to the veteran's service-connected low back
disability.
REMAND
This appeal is remanded to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if any further action is required on the veteran's part.
The veteran contends that he is entitled to service
connection for a cervical spine condition, a sexual
dysfunction, and a neuropsychiatric disorder (variously
diagnosed as schizophrenia, anxiety, and depression), all
claimed as being proximately due to or the result of his
service-connected back disability. He also contends that he
is entitled to TDIU based on all of such disabilities. The
record before the Board indicates that the veteran's only
service-connected disability is from a low back disorder,
currently evaluated 60 percent disabling.
In the VA Form 9 that the veteran filed in March 2001, he
alluded to records of private medical treatment and hospital
records that he asserted had not been considered by the RO.
In a claim filed in June 2001, the veteran asserted that
records of his treatment at a VA outpatient center in
Mayaguez, Puerto Rico, dating from 2000, support his claims.
He requested the RO to obtain such records. In February
2002, the RO decided the veteran's claims for service
connection for a neck disorder, a sexual dysfunction, and
anxiety without attempting to obtain the cited VA treatment
records. The RO's October 2002 supplemental statement of the
case concerning the issue of entitlement to TDIU, and the
December 2002 statement of the case concerning the veteran's
other claims, do not indicate that any such VA records had
been received or considered by the RO.
In March 2003, the veteran renewed his request that the RO
obtain records of his VA outpatient treatment at the VA
clinic in Mayaguez, Puerto Rico.
The record does contain some VA treatment records from the
Mayaguez outpatient treatment center dated from April 2002 to
April 2003. However, these records have apparently not been
considered by the RO in connection with the claims currently
on appeal. VA must obtain and consider all relevant records
from a Federal department or agency, including VA and other
Federal agencies such as the Social Security Administration.
38 C.F.R. § 3.159(c)(2) (2003).
Furthermore, it appears that there are other records in the
custody of non-Federal government sources. These include
records associated with the veteran's claim for and award of
compensation for a neck injury sustained in a work accident
in 1996. VA must attempt to obtain such records, and any
other relevant non-Federal records sufficiently identified by
the veteran. 38 C.F.R. § 3.159(c)(1) (2003).
Under 38 C.F.R. § 3.159(c)(4), VA's duty to assist a claimant
in the development of his claims includes providing a medical
examination if VA determines that such an examination is
necessary to decide his claims. The regulation further
provides that medical examination is necessary if the
information and evidence in the record does not contain
sufficient medical evidence to decide the claim, but, 1)
contains competent lay or medical evidence of a current
diagnosed disability, or persistent or recurrent symptoms, 2)
establishes that the veteran suffered an event, injury or
disease in service and, 3) indicates that the claimed
disability or symptoms may be associated with the established
in-service disease.
Pursuant to this remand, the RO may be scheduling VA
examinations. The veteran is hereby notified that it is his
responsibility to report for the examinations and to
cooperate in the development of his claims. The consequences
of failure to report for VA examination without good cause
may include denial of the claim. 38 C.F.R. §§ 3.158 and
3.655 (2003).
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claims and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should obtain the names and
addresses of all medical care providers
(VA, private or other) that have treated
or examined the veteran for a neck
disorder, neuropsychiatric disorder, or a
sexual function disorder. The veteran
should be requested to provide the
approximate dates of treatment. The RO
should attempt to obtain all records
associated with the veteran's application
for and award of compensation for a job-
related injury through the Puerto Rico
State Insurance Fund Corporation. The RO
should take steps to obtain any pertinent
records that are not currently part of the
claims folder and associate them with the
claims folder. All efforts to obtain
these records should be fully documented,
and, in the event that records identified
by the veteran or otherwise apparent from
a review of the claims file cannot be
obtained after reasonable efforts to do
so, the veteran should be so notified.
2. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002) are
fully complied with and satisfied. See
also 38 C.F.R. § 3.159 (2003).
3. The veteran should be afforded
appropriate VA examination(s) to determine
the nature and etiology of his claimed
sexual dysfunction. The claims folder
should be made available to and reviewed
by the examiner(s). All indicated tests
and diagnostic studies should be
performed. If the veteran has a sexual
dysfunction, the examiner should express
an opinion whether it is more likely than
not (i.e., probability greater than 50
percent), at least as likely as not (i.e.,
probability of 50 percent), or less likely
than not (i.e., probability less than 50
percent) that any sexual dysfunction
identified was incurred in service, or is
proximately due to or the result of
service-connected disability from a low
back disorder.
4. Then, the RO should again review the
record and readjudicate the claims that
are the subject of this appeal. If any
benefit sought on appeal remains denied,
the appellant and the appellant's
representative should be provided with a
supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).